Volume 4 — Appeals, District of Columbia

Hearing on an appeal by the plaintiff from an interlocutory order of the Supreme Court of the District of Columbia, holding a law term (leave to maintain the appeal having been granted by the court February 21, 1894), overruling a motion to quash a writ of certiorari to a justice of the peace in a landlord and tenant proceeding.

<p>Hearing on an appeal from an order of the Supreme Court of the District of Columbia, holding an equity term, requiring the appellant, upon his answer to a rule to show cause, to comply with the terms of a purchase of certain real estate, sold to him under an order of court in a suit depending in said court. Pending the appeal the appellant died and the executor of his estate, the American Security and Trust Co., became party appellant.</p> <p>The Court in its opinion stated the case as follows:</p> <p>One Lindsay Muse, a colored citizen of the city of Washington, in the District of Columbia, died on June 14, 1888, seized and possessed of certain real and personal property therein. He left a will, duly admitted to probate, the substantial parts of which that bear upon the controversy in this case, are as follows:</p> <p>“ I, Lindsay Muse, of the city of Washington, in the District of Columbia, do make and declare this my last will and testament:</p> <p>* >jc * * *</p> <p>3. “ I give and bequeath to my daughter, Louisa Muse, the other silver cups, and six silver teaspoons, with my name on them, also all my household furniture, books, including my Harper’s Family Bible, pictures, curiosities, and family stoves, to remain in and with my present residence as hereinafter desired.</p> <p>* # % # ^ sK</p> <p>“ I dispose of my real estate as follows:</p> <p>(Here follow devises of different specific pieces of real estate to three married or widowed daughters, Fanny Weaver, Sarah Snowden, and Florida Pitts — the devise to each being “ for and during her life, and after her death to her children in fee simple.” Then follows the devise that has given rise to the present controversy, which is as follows:)</p> <p>“ I give, devise and bequeath lots number fourteen (14), fifteen (15) and sixteen (16) in square numbered one hundred and twenty-six (126) in said city of Washington, with the dwelling and other improvements thereon, being my present residence, to my daughter Louisa Muse, for and during her life, and if she marry and have issue therefrom, then after her death to such children in fee simple.</p> <p>“ It is my desire that this property, my present residence, and the furniture, books, pictures, etc., above bequeathed to her shall be kept intact as a home, as it now is, and I direct that my executors hereinafter named shall hold, set apart and keep two thousand dollars ($2,000) in United States four per cent, bonds now held by me, the interest of which shall be annually expended and applied in the payment of all general or special taxes or assessments on said lots, numbered fourteen (14), fifteen (15) and sixteen (16) in square one hundred and twenty-six (126) and the insurance on and repair of the dwellings and other buildings thereon.</p> <p>“ In the event of the death of my said daughter Louisa, without leaving lawful issue or the happening of anything which, in the sound discretion of my executors, renders the application of said interest on said bonds as above, impracticable or improper, then the said bonds may be divided between my daughters, Fanny Weaver, Sarah Snowden, Florida Pitts, and Louisa Muse, or the survivor of them and the child or children of such of said four daughters as may have died, the child or children of such deceased daughters as may have died to take their parents’ share.</p> <p>“I give, devise and bequeath all the rest and residue of my estate, real and personal, after the payment of all my lawful debts, to my four daughters, Fanny Weaver, Sarah Snowden, Florida Pitts and Louisa Muse, or the survivor of them and the child or children of such as may dié, such child or children to take their parents’ share.</p> <p>“I will, desire and devise that the lots so as above devised to my four daughters shall be held by the respective devisees as above, free from any control, as to the lots and premises and improvements so devised or any rents and profits therefrom, of or by their respective husbands, or any husband my daughter Louisa may happen to marry, desiring as I most earnestly do that the children óf my said four daughters last above named may have the enjoyment, use and benefit in fee simple, of the property above devised to their mothers after their death.</p> <p>“In case of the death of either of my said daughters, Fanny Weaver, Sarah Snowden, Florida Pitts and Louisa Muse, without leaving a child or children, or the child or children of such child or children surviving her or them, then I will and devise that the real estate of any one so dying shall be divided between the survivors of said four daughters last above named or the child or children of such of said daughters, who may have died, the child, children, grandchild or children of such of said last-named daughters as may have died to take their parents’ share.”</p> <p>^ >5« ' í¡<</p> <p>The four daughters of the testator who are mentioned in the will entered into possession of their respective devises. The property devised to the daughter Louisa Muse, which was the residence of the testator, comprises upwards of 12,500 square feet of land, situated in a rapidly improving portion of the city of Washington, and estimated to be worth about $27,000. But the houses thereon are stated to be of very little value, yielding rent only to the amount of $32 a month, or $384 a year, while the annual taxes on the property amount to upwards of $237, and a proper use of the lots, it is said, would require the destruction of the houses.</p> <p>In this condition of things, Louisa Muse filed her bill of complaint in the present case, in which she stated that of the two houses on the property one was rented for $12 a month and the other, valued at about $20 a month, she used as a homestead with one of her nieces; that otherwise the property was wholly unproductive; that the income therefrom was insufficient to support her and pay the taxes; that she had no other property or estate; that the property was liable to he sold for taxes; and that it would be for her interest and the interest of those in remainder that the property should be sold, and the proceeds of sale invested for the uses and purposes of her father’s will; and she prayed for such a sale.</p> <p>The defendants made to the bill were her three sisters, Fanny Weaver, Sarah Snowden, and Florida Pitts, and the children of Fanny Weaver and Florida Pitts, of whom all but one or two were minors. Sarah Snowden, it is alleged, was without children, and without possibility now of issue; and the complainant stated that she herself was, at the time of the filing of the bill (January 14, 1892), 44 years of age, unmarried and without issue, and with possibility of issue now extinct. The defendants answered the bill, all of whom were of age, consenting to the relief prayed for by the complainant, and admitting as true all the statements of the bill; and the minors made the usual formal answer by guardian ad litem. The complainant testified as a witness to the statements of her bill; and another and disinterested witness testified as to the condition of the property and the desirability of a sale.</p> <p>The court granted the prayer of the bill, and decreed a sale, and appointed a trustee to make the sale. Having offered the property at public auction and received no bid that was satisfactory to the parties in interest, the trustee withdrew the property. Sometime afterwards he received a private offer for it from Benjamin H. Warder, which was in the following terms:</p> <p>“Washington, D. C., July 29, 1893.</p> <p>“ David Warner, Esq., trustee.</p> <p>“Sir: I hereby offer to purchase lots 15 and 16 and part of lot 14, square 126, in the city of Washington, D. C., as heretofore advertised by you as trustee in the equity cause of Muse v. Pitts and others, at the price of $1.90 per square foot, the terms of payment to be one-third in cash and the balance in equal payments at one and two years from this date, with interest payable semi-annually at the rate of five per cent, per annum. Upon your acceptance of this proposition and ratification by the court I shall be prepared to close the matter. It is understood that the title to be conveyed to me shall be a good one.</p> <p>“Very respectfully,</p> <p>(Signed) “ B. H. Warder.”</p> <p>This proposal was reported by the trustee to the court, with a recommendation for its acceptance; and the court directed the trustee to accept it. And there was an order of ratification passed in the cause. Warder, however, refused to complete the purchase; and a rule was issued against him to show cause why he should not be required to complete it. He filed an answer to the effect that he refused to complete the purchase, for the reason that, as he was advised by counsel learned in the law, the court was without jurisdiction to make sale of the property in question, and that, therefore, no good title could be conveyed to him. Upon hearing of the rule and the answer thereto, the court held that it had jurisdiction to make the sale, and that the trustee could convey good title; and it passed an order laying a peremptory rale upon Warder, requiring him to complete his purchase.</p> <p>From this order he has prosecuted the present appeal.</p> <p>There is no defect of title, the proceedings are strictly according to the statute, and the purchaser should be required to take the land. The proceedings are based upon Sections 969, 970, 971, B. S. D. C., taken from the act of Congress of August 18, 1856. The only question made.by the purchaser in his answer to the rule is whether the will of Lindsay Muse is within the terms of Section 969.</p> <p>There are several paragraphs of the will to be considered: The first is the devise: “ To my daughter Louisa Muse for and during her life, and if she marry and have issue therefrom, then after her death, to such children in fee simple.” (Louisa Muse has not married.) The will also provides: “ In case of the death of either of my said daughters, Fanny Weaver, Sarah Snowden, Florida Pitts and Louisa Muse, without leaving a child or children . . . surviving her or them, then I will and devise that the real estate of any one so dying shall be divided between the survivors of said four daughters last above named, or the child or children of such of said daughters who may have died, the child, children, grandchild or grandchildren of such of said last named daughters as may have died to take their parents’ share.”</p> <p>These provisions are, of course, to be read together, the last being a limitation upon the first; together, they create what the statute demands: (1) A life estate in Louisa; (2) a contingent remainder to her issue “if she shall marry and have issue therefrom(3) such issue, in order that it may take the remainder, must survive the mother, otherwise the contingent remainder is to descend upon the sisters of Louisa and their children.</p> <p>Upon this subject generally see 2 Washburn on Heal Property, 608 et seq.</p> <p>Local history has preserved the fact that the enactment of the statute of August 18, 1856, was procured in order that sales in fee simple might be made of the very valuable real estate devised by the will of John Gadsby for the benefit of his two daughters. By that will the estates in question were devised to trustees to hold for the benefit of his daughters severally, free from the control of their husbands, &c. Will Bk. 5, page 341. It further provided as follows: “ In case either of my said daughters shall die leaving no issue living at the time of her death, then the interest or estate of her so dying without such issue is and shall become forthwith vested in the survivor . . . and in case both or either of my said daughters shall die leaving issue living at her or their death, then said trustees . . . shall hold the said property to the use of the said issue, one moiety thereof to the issue of each of my said daughters; or in case one only of them shall die leaving such child or issue, then after the death of the other daughter the whole of said property shall vest in the said issue, the issue in each and all of said cases to take in fee simple.”</p> <p>It will be seen that while the language of this will of John Gadsby differs from that of the Muse will, the legal effect of each is similar. Id each there is a limitation for life with a contingent limitation over in fee to such issue as shall be living at the death of the tenant for life, followed by contingent cross remainders.</p> <p>In November, 1858, and after the passage of the statute a bill was filed seeking the sale of the property devised to the daughters named, trustees were appointed to sell, and sales were made and confirmed. See McBlair v. Ten Eyck, No. 1445 Ch. Kules, 5.- The property thus sold included a large part of the square lying between Pennsylvania avenue and H street, and Lafayette Square and Seventeenth street, and the titles of the present holders depend absolutely upon the application of the statute in question to the will which has been quoted. In 1868 a second bill was filed (No. 1355, Eq. Doc. 19) under which there was sold, under orders of the court, a great quantity of other very valuable property. The construction thus placed on this statute will not be lightly regarded.</p> <p>2. The only other question made by the appellant (who is not a party to the original action) in his return to the rule is whether the will prohibits a sale within the meaning of Section 969. The language is: “It is my desire that this property, my present residence . . . shall be kept intact as a home.” That words of this kind are not prohibitive or mandatory, but are mere expressions of a wish has been too often held to require argument. Again, the court by making the decree for sale necessarily passed upon the proper construction to be placed on this clause, and its decision is not open to collateral attack. Long v. Long, 62 Md. 61; Gray v. Brig Nardello, 1 Wall. 634; Noble v. Union River Logging Co., 147 U. S. 173.</p> <p>Should the appellant claim that the evidence did not justify the conclusions reached by the court when it decreed the sale, or that there is irregularity of any kind in the proceedings, which on appeal by any party thereto would have resulted in a reversal of that decree, we answer that the appellant has no concern in such matters, and the court will not consider them at his instance. They do not affect the title of the purchaser to the premises sold, and, it might be added, no objection of this kind was suggested by him in his answer to the rule to show cause why he should not be required to comply with his bid. “ It is sufficient for the buyer to know that the court had jurisdiction and exercised it, and that the order, on the faith of which he purchased, was made and authorized -the sale. With the errors of the court he has no concern.” Gray v. Brig Nardello, 1 Wall. 634; Grignon’s Besses v. Astor, 2 How. 319 ; Voorhees y. Bank, 10 Pet. 449; Mohr v. Manniere, 101 U. S. 417; Davis v. Gaines, 104 Id. 386 ; Bong y. Bong, 62 Md. 33.</p>

<p>Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, holding a criminal term, in a prosecution for a second offense of petit larceny.</p> <p>The Court in its opinion stated the case as follows:</p> <p>The appellant, William Belt, alias William Jones, was indicted in the Supreme Court of the District of Columbia, holding a criminal court, and convicted on the 20th day of February, A. D. 1894, of a second offense of larceny, and sentenced to three years’ imprisonment in the penitentiary. The conviction was under Section 1158 of the Revised Statutes of the United States for the District of Columbia, which provides that “ every person convicted of feloniously stealing, taking and carrying away any goods or chattels, or other personal property, of the value of thirty-five dollars or upwards, or any bank note, promissory note, or any other instrument of writing for the payment or delivery of money or other valuable thing, to the amount of thirty-five dollars or upward, shall be sentenced to suffer imprisonment and labor, for the first offense, for a period not less than one nor more than three years, and for the second offense, for a period not less than three nor more than ten years.”</p> <p>At the trial of the case, after proof of the special offense charged against the defendant, the prosecution proceeded to prove that it was the defendant’s second offense of the kind, by offering in evidence the record of his previous conviction of the crime of larceny in the Police Court of the District of Columbia on April 8,1893. To the admission of this record in evidence, objection was made, on the ground that it showed on its face a waiver of the right of trial by jury on the part of the prisoner and a trial and conviction by the court alone without a jury, a method of procedure claimed to be in violation of the Constitution of the United States, and therefore null and void. The objection was overruled, and exception taken; and upon that exception the case has been brought by appeal to this court.</p> <p>The act of Congress of July 23, 1892, defining the jurisdiction of the Police Court of this District, is unconstitutional, in that it violates the third section of Art. Ill of the Constitution of the United States, which says: “ The trial of all crimes, except in case of impeachment, shall be by jury.” Art. VI of the Amendments did not take away from the accused the inalienable right of trial by jury, which was peremptory at common law. See U. S. v. Taylor, 11 Fed. Eep. 470, and cases cited; Eawle on the Constitution, 2d Ed., 48.</p> <p>The paragraph in Art. Ill of the Constitution, above quoted, differs from Art. VII of the Amendments. In the latter it is the mere right to demand trial by jury in civil cases, which is guaranteed, and the parties may waive that right either by express agreement, or by failing to demand a jury, while the language used in Art. Ill is peremptory that the trial of all crimes, except in cases of impeachment, shall be by jury.</p> <p>This language includes all the modes, whether with or without the consent of the parties. A party may confess his guilt by plea of guilty, and judgment may bo passed upon the plea, yet if there is an issue of fact which has to be tried, that trial can only be by jury. Miller on the Constitution, 499.</p> <p>The declaration that the trial shall be held in the State where the crime shall have been committed is another evidence of the disposition of the constitutional convention to adhere to what they supposed to be the safeguards of the common law. It was a part of the common law “ that every man charged with a crime should be tried by a jury of the vicinage,” etc., etc. Miller on the Constitution, 502.</p> <p>In criminal cases the doctrine that the constitutional privileges may be waived must be true to a very limited extent only. A party may consent to waive rights of property, but the trial and punishment for public offenses are not within the province of individual consent or agreement. Cooley’s Const. Limitations, 182.</p> <p>We refer to the American and English Encyclopaedia of Law, Vol. Ill, Constitutional Law, 731, Trial by Jury, notes and citations, 733, same.</p> <p>A trial is a proceeding to investigate disputed facts. But suppose there are no disputed facts. The law does not insist on a farce. By pleading guilty, a prisoner does not waive a jury trial and consent to be tried in some other mode. He simply dispenses with a trial of any kind. But surely it does not follow that upon a plea of not guilty a court may take jurisdiction to pass on any disputed facts.</p> <p>Prior to the adoption of the Constitution of the United States there was no law in existence here but the common law of England and the statutes of Maryland. After the formation of our present government, Maryland and Virginia held on to the old magisterial system. They had their quarter sessions, in which a jury -was impaneled to try all jury cases. 1 Russell on Crimes, 760, shows that it was not until the ninth year of the reign of George IV in England, A. D. 1829, long after the adoption of the Constitution of the United States, that an act of the English Parliament was enacted,, authorizing two justices of the peace summarily to try and convict and punish a person charged with misdemeanor, without the intervention of a jury. This Act of Parliament of 1829 was never in force in America. These misdemeanors had always been punished by fine or imprisonment, or both, at the discretion of the court. The enormity of the offence depended upon the circumstances, and upon conviction an English subject might have been deprived by the King’s Justice of liberty and estate, both without limit. Therefore Magna Charta was enacted. Blackstone’s Commentaries, B. IV, Chap. 27, 349 ; Coke’s Institutes (Thos. Ed.), Vol. II, Chap. 13.</p> <p>Since the adoption of the Magna Charta all crimes either by information or indictment were tried by a jury under the common law.</p> <p>We have searched in vain among the English Reports to find after the days of Magna Charta where a subject was fined or imprisoned by a justice or court without the verdict of a jury (unless the party plead guilty), or unless by some special statute, which in England is omnipotent, and those cases were petit offenses, such as trespassing on private property, killing game, etc., and in every case of larceny a jury trial was had according to the common law.</p> <p>The Act of July, 23,1892, provides that the prosecutions in the Police Court shall be on information by the proper officer, and says: “ In all prosecutions within the jurisdiction of the said court, in which, according to the Constitution of the United States, the accused should be entitled to a jury trial, the trial shall be by jury, unless the accused in open court shall expressly waive such trial,” etc.</p> <p>We claim the act above cited is in violation of the Constitution of the United States and is void, because petit larceny at common law was a felony and was always triable by jury. In re Fauldan, 20 D. C. 433. The Police Court has no jurisdiction to try a person accused of such crime without a jury, even though the accused waive that right. United States v. Jg,ckson, 20 D. C. 424.</p> <p>And in support of the general principles laid down, we refer to the case of Callan v. Wilson, 127 U. S. 540.</p> <p>We hold that the record of the Police Court, a copy of which is herewith filed and was in evidence in the trial, is not sufficient in law to fully establish the fact, as it was only secondary evidence when the information' upon which he was tried might have been produced.</p>

<p>Hearing on a bill of exceptions by the defendant, in an action of assumpsit.</p> <p>The case is stated in the opinion.</p>

<p>Hearing on an appeal from the Commissioner of Patents in an interference proceeding.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on a bill of exceptions by the defendants in an action of assumpsit.</p> <p>Statement of the Case.</p> <p>At the trial the following instructions were granted by the court at the request of the plaintiff, over the objection of the defendants:</p> <p>“ 1. If the jury believe from the evidence that the title to the Boyle farm was in Mollie M. Main and Lewis C. Main, in September, 1888, and, further, that William H. Main was their agent for the exchange of that farm for Aukam’s house and part of his furniture in Troy, N. Y., then any representations made by said William H. Main as such agent in respect to such exchange are binding upon the defendants in this action.”</p> <p>“ 2. If the jury believe from the evidence that the defendants induced the plaintiff to assume the $2,000 mortgage on the Boyle farm upon the representation that the title to the Tattnall County, Ga., land was good and valid in George T. Mason and upon the assurance that, if his title was not good, they would make the plaintiff whole to the extent of the value of said personal property and the amount of said mortgage, then the plaintiff is entitled to recover if the jury find from the evidence that the title of said Mason to said land was not a good and valid title.”</p> <p>No prayers for instruction were asked by the defendants.</p> <p>The further material facts of the cáse will be found stated in the opinion of the court :</p>

<p>Hearing on a bill of exceptions by the plaintiff in an action on a bond.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This action was brought on a bond, against principal and surety therein, to recover for default of the principal, occuring by the non-performance of a building contract. Judgment was taken by default against the principal, but the surety William W. McCullough, pleaded to issue, and upon trial there was a verdict rendered for the defendant, by the direction of the court.</p> <p>The declaration counted simply upon the penal obligation of the bond, and the condition thereof was brought upon the record in the plea of general performance pleaded by the surety, the present appellee.</p> <p>The condition of the bond is, after reciting that Hanson C. Walter, the principal, on the 27th day of August, 1888, the same date of the bond, entered into a contract with the plaintiff, William Whelan, for the erection of two three-story and cellar houses and stores in the city of Georgetown, District of Columbia, “that if the said Walter should well and truly keep and perform all and each of the several covenants and agreements therein contained, then said obligation to be null and void, otherwise to remain in full force and effect.”</p> <p>To the plea of general performance the plaintiff replied, denying performance by the principal in the bond, and assigned three breaches of the condition of the bond, as follows:</p> <p>1st. That said Walter, in and by said contract referred to in the condition of the bond, covenanted to furnish and provide, at his own proper cost and expense, all the materials of every kind and description that were necessary to erect and fully finish and complete the two houses and stores in the condition of the writing obligatory mentioned, but failed and refused to pay for materials necessarily used in the construction of said two houses and stores, to the value of $2,062, in consequence whereof the plaintiff was compelled to, and did, pay said sum of $2,062, on the 11th day of June, 1890, to the persons who had furnished said materials, to the damage of the plaintiff in said sum of $2,062, with interest.</p> <p>2d. That by reason of the refusal or failure of the said Walter to pay for said materials, the plaintiff and said Walter were sued by persons who had furnished the materials as aforesaid, and who had acquired mechanics’ liens upon the property of the plaintiff, for the amounts of said materials so furnished, and recoveries were had for such amounts, and the plaintiff was required to pay the same, together with the costs and expenses of defending the suit, &c., to the damage of the plaintiff in the sum of $500.</p> <p>3d. That, by reason of the failure of said Walter to complete said buildings within the time specified and required in and by said contract, he incurred certain penalties prescribed in said contract, and which he has failed and refused to pay, to the damage of the plaintiff in the sum of $500.</p> <p>To these breaches the defendant McCullough rejoined, by simply joining issue, which must be understood as a traverse of the facts alleged in the breaches assigned.</p> <p>At the trial, the bond, and a paper signed by the plaintiff, purporting to be the contract, were read in evidence to the jury; and the plaintiff, as witness for himself, testified that prior to the execution of the bond and contract given in evidence, an architect had prepared for him certain drawings and specifications to be used in the construction of the buildings referred to in the contract; that the houses were erected by Walter, the contractor, according to such drawings and specifications; and that Walter had them in his possession before the contract was made, and used them in preparing the bid upon which the contract was awarded to him. He further testified, that McCullough, the surety in the bond and the present appellee, furnished to Walter the lumber that was used in the construction of the houses. He also testified that Walter, the contractor, did not finish the houses, but he stopped work thereon some time before they were completed, and the plaintiff had to complete them; and that he, the plaintiff, had paid out to Walter on account of the buildings, the whole amount of the contract price, except the sum of $822, and all of which balance, less the sum of $6, he paid out for labor and materials in completing the unfinished houses that Walter had abandoned. He then testified that Walter had failed to pay for labor and materials furnished to him for the construction of the buildings under the contract, and that mechanics’ liens were taken, and enforced by proceedings in equity, and the amount of such liens decreed against the property, the plaintiff was compelled to pay to the parties entitled, in order to avoid the sale of the property under the decree. The proceedings in equity were taken against the plaintiff, and against Walter, McCullough and others; and the decree upon its face declared the several amounts due to be for and in respect of labor and materials furnished to Walter, and used by him in the erection of the two houses for the plaintiff.</p> <p>The plaintiff, as means of showing what the contract required of the contractor, the principal in the bond, offered to read in evidence the specifications made by the architect for the construction of the buildings, and which had been used by the contractor as testified to by the plaintiff; and also offered to read in evidence to the jury the equity proceedings and decree passed thereon, for the enforcement of the mechanics’ liens against the property of the plaintiff; but they were severally objected to by the defendant, and the objections sustained by the court, and all such evidence was excluded. To which rulings of the court, the plaintiff excepted.</p> <p>The plaintiff also testified as to the payment to Walter of the contract price for the buildings; and the payment of the amount of the mechanics’ liens ascertained by the decree, and as to the time when the work on the buildings was abandoned by Walter, and the time required to finish the work from the time of such abandonment by the contractor; and further, that the houses when finished were worth about $7,000 each, and would rent for $50 per month.</p> <p>At the close of the evidence, upon motion of the defendant, the court instructed the jury to render their verdict for the defendant, which was accordingly done. The plaintiff excepted, and has appealed.</p>

Hearing on a bill of exceptions by the defendant in an action on a fire insurance policy. Statement oe the Case. This was an action brought by John Vance Lewis against the Hamburg-Bremen Fire Insurance Company on a policy of insurance for $2,500, issued by the defendant to the plaintiff. Verdict and judgment were for the plaintiff.

Hearing on a bill of exceptions by the defendant in an action for damages. Statement oe the Case.

<p>Hearing of a suit in equity on the pleadings. The cause was set down for hearing on bill, pleas and demurrer at an equity term of the Supreme Court of the District of Columbia and was transferred to the General Term of that court to be heard there in the first instance. It was transferred to this court by operation of the act of Congress of February 9, 1893.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on an appeal from a decree of the Supreme Court of the District of Columbia, overruling exceptions to a report of the auditor, confirming the same and directing the distribution of funds in accordance therewith. The case was appealed to the General Term and was there pending upon the creation of this court, to which it was transferred by operation of the act of February 9, 1893.</p> <p>The Court in its opinion stated the case as follows:</p> <p>The controversy in this cause is between certain creditors of the corporation known as the Evening Critic Company, and certain others of its successors, the Washington Critic Company, concerning the distribution of certain assest in the hands of the latter corporation.</p> <p>The original bill in this cause was filed May 14, 1891, in the Supreme Court of the District, by Richard Weightman against the Washington Critic Company. He claimed to be the assignee of a judgment for the sum of $8,828.73 recovered against said corporation July 9, 1890, by Stilson Hutchins, which judgment is entitled to a credit of $7,000 as of November 10, 1890. For the remainder execution issued May 8, 1891, and was returned nulla bona the same day.</p> <p>It is alleged that on January 26, 1891, the corporation executed a trust deed to Warner and Edmonston, trustees, conveying one share in the stock of the United Press and the franchise of said United Press for the city of Washington, a Hoe press and other appliances and personal property in the possession of the corporation; also all personal property that might be afterwards acquired in lieu of, or in addition to, said property. The purpose of the trust was to secure an issue of 200 bonds, of the face value of $100 each, of which 127 had been issued and disposed of before the issuance of execution. The defendant was alleged to be indebted to Smith, Dixon & Co. in a judgment rendered May 2, 1891, for $772.72 as well as to others, and to have become insolvent.</p> <p>The prayer was for the appointment of a receiver and for a decree winding up the affairs of the corporation.</p> <p>On the same day an order was made appointing Henry E. Davis receiver, who immediately qualified and entered upon the discharge of his duties. On June 29, 1891, in obedience to an order of the court, the receiver sold the property in his hands, in two parcels. The press, Brown folder and belongings, upon which Stilson Hutchins claims a special lien, as will be seen hereafter, were sold separately for $1,000; the remaining property, of which the “United Press” franchise was of chief value, was sold for $10,500. This sale was confirmed without objection, and the matters in controversy concern the distribution of the net proceeds.</p> <p>On May 27, 1891, Stilson Hutchins filed a petition in intervention claiming a balance for rent due him as owner of the building occupied by the corporation for an unexpired term. This claim was rejected by the auditor and is not now in controversy. The petition alleged that Hutchins was the owner of the press and Brown folder, which he sold, among other things, to Richard Weightman on November 12, 1890.</p> <p>Weightman gave to Hutchins four notes for $5,000 each and to secure them conveyed the press, folder and belongings to Greer and Cleary, trustees, providing for sale in case of default of payment, etc., and allowing retention of possession by the grantor. This deed of trust was not recorded until January 31, 1891, three days after the record of the trust to secure the bonds issued by the corporation, to which Weightman had, shortly after his purchase, conveyed the property. Of the 127 bonds outstanding about $3,900 face value are held or controlled by Samuel W. Maddox, president of the Washington Critic Company, who waived all claim to priority of lien as against the lien of Hutchins. Priority is claimed by the owners of the remaining bonds representing a face value of about $8,800. All the bondholders claim a first lien upon the remainder of the fund in the hands of the receiver.</p> <p>The Evening Critic Company was incorporated in the District of Columbia, June 4, 1881, and amended March 22, 1882, for the purpose of publishing a newspaper in the city of Washington. This corporation published a paper for several years, during which it acquired some type and appliances of little value, and the franchise and stock in the “ United Press,” the value of which was estimated at from $15,000 to $25,000. This corporation became involved and its active organization and operation ceased. Certain of its shareholders or promoters took out articles of incorporation for its successor, under the name of the Washington Critic Company, on October 19, 1887. The new corporation took possession of the office, books, property and appliances of the Evening Critic Company, including the “United Press” franchise, and continued the publication of the Critic newspaper.</p> <p>There is no evidence to show that the purchase, or contract for the purchase, of this property was ever made by the old corporation with the new one. The new corporation becoming embarrassed, issued the bonds in January, 1891, as above stated.</p> <p>The Evening Critic Company was indebted to George Hill, Jr., for certain sums of money in the years 1884 and 1885, to recover which he instituted an action at law, in April, 1885, in the Supreme Court of the District of Columbia, and recovered a judgment December 7, 1887, for ¡§2,502.49, with interest from certain prior dates at six and seven per cent, per annum. February 28, 1888, fi. fa. issued upon this judgment and was returned April 19, 1888, nulla bona. Attachments had also issued without results. The defendant had no property other than that taken possession of by the Washington Critic Company.</p> <p>On July 25,. 1885, one Mornay D. Helm, who was an original incorporator of the Evening Critic Company, filed a bill, also in the District Supreme Court, against said company, the Washington Critic Company, Hallett Kilbourn, Stilson Hutchins and others, to subject the property of the Evening Critic Company to certain debts due complainant and others. George Hill, Jr., intervened in this cause July 28, 1885, setting out his pending suit for debt, &c. This bill was dismissed by complainant on the 17th day of February, 1887, though it is claimed by Hill as still depending as to his claim.</p> <p>On June 5, 1889, said Hill filed an independent bill, numbered 11,842, against Hutchins, Kilbourn, the Evening Critic Company, the Washington Critic Company, and Thos. J. Brady, to establish his lien upon the property of the Evening Critic Company, and to compel payment of his judgment aforesaid. This suit was depending at the time of the filing of Weight man’s bill herein, and is still upon the docket and undetermined. On September 12, 1891, the said Hill filed his petition as intervenor in this cause, in which he alleged the facts above stated with respect to the indebtedness claimed, suits instituted, etc. He further claimed his lien upon the property of the Evening Critic Company, which he alleged was held in bad faith by the Washington Critic Company, and with full notice of his rights, claims, etc. He asks that he be permitted to intervene as a complainant, and that he be decreed to have a lien upon the proceeds of the sale prior to the claims of any and all persons, and for an order of payment of his judgment in full.</p> <p>October 29, 1891, the court having confirmed the receiver’s report of sale, ordered a reference to the auditor for a statement of the account of the receiver and report upon the several claims upon the fund, etc.</p> <p>The auditor filed an elaborate report on February 24, 1892, covering the points of reference. Such of his conclusions as were excepted to and are now in controversy are briefly stated as follows : 1. That the property of the Evening Critic Company passed lawfully into the possession of the Washington Critic Company, and not in fraud of the rights of creditors. 2. That the mortgage to secure the bonds of the Washington Critic Company was regularly made, and the 127 bonds actually issued constitute a prior lien upon all the property described therein. 3. That of the holders of these bonds, Annie L. Weightman ($6,400) and William B. Webb ($400) had no notice of the existence of the Hutchins trust, and their lien takes precedence over his upon the proceeds of the press, folder and belongings.</p> <p>The net proceeds of the sale in the hands of the receiver were stated to be $8,567.05. The net proceeds of the sale of the press, folder, etc., $858.03, were recommended to be distributed as follows: To Annie L. Weightman, on account of $5,000 of bonds held by her, $337.81; to Samuel Maddox, in trust for Annie L. Weightman, on account of $2,400 of bonds held in trust for her, $162.15 ; to William B. Webb, on account of $400 of bonds held by him, $27.02; to Stilson Hutchins, on account of note of Richard Weight-man, the remainder of $331.05. The remainder of the fund was recommended to be distributed among the bondholders as follows: To J. T. Arms, on account of $3,300 of bonds, $2,003.13; George E. Emmons, on account of $500 of bonds, $303.50; Annie L. Weightman, on account of $5,000 of bonds, $3,035.05 ; Samuel Maddox, in trust for Annie L. Weightman, on account of $2,400 of bonds, $1,456.82; William B. Webb, on account of $400 of bonds, $242.80; George A. Mcllhenny, on account of $500 of bonds, $303.50; Samuel Maddox, on account of $600 of bonds, $364.02.</p> <p>Appeal has been duly prosecuted from the decree overruling exceptions to and confirming the auditor’s report.</p>

Hearing on a bill of exceptions by the plaintiff in an action for damages for personal injuries. The Court in its opinion stated the case as follows: This case has been long pending and has been tried several times, both at special terms, and at General Terms on appeal, of the Supreme Court of the District, with various results. The action is for personal injury to the plaintiff, occasioned, as alleged, by the negligence of the defendant, through its employees.

Hearing on a bill of exceptions by the defendant in an action of damages for personal injuries. Held: in a well considered case, only to be in a state of ample preparation to meet all emergencies quickly. Holly v. Boston Gas L. Co., 8 Gray, 123. 2.

<p>Hearing on a bill of exceptions by the plaintiff in an action on a promissory note.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is an action at law instituted August 4,1881, in the Supreme Court of the District of Columbia, by Benjamin U. Keyser, receiver of the German-American National Bank of Washington, for the use of the Chemical National Bank of New York, against Thomas L. Hume, in his own right, and Thomas L. Hume and Mary E. Pickrell, as executors of the last will of A. H. Pickrell, deceased. The declaration is upon a note for the sum of $7,666.36, made by Thomas L. Hume, September 11, 1878, payable to the order of A. H. Pickrell, at the German-American National Bank, ninety days after date, with interest at eight per cent, per annum, and endorsed by said A. H. Pickrell.</p> <p>The executors filed pleas of nil debet and nul tiel corporation. Thomas L. Hume died October 28, 1881, and his administrators were regularly made parties defendant in his stead. To an amended declaration of the plaintiff, Mary E. Pickrell, as surviving executrix, on September 16, 1886, filed pleas to the effect that A. H. Pickrell was never indebted as alleged; that he never promised as alleged; that there was no such corporation as the German-American National Bank; that there had been no notice of dishonor, etc.; that the action was barred by limitation; and that plaintiff had no right to bring the suit.</p> <p>The administrators of Hume filed a formal plea, denying the indebtedness, promise to pay, etc. Joinder of issue was had October 8, 1886. June 29, 1891, the death of B. U. Keyser was suggested, and his successor as receiver, W. B. Thompson, was substituted as plaintiff, and has since prosecuted the suit.</p> <p>The case has been on trial six times in the court below, though this is the first appeal. Once there was a mistrial on account of the illness of the trial judge, and once again by reason of the failure of the jury to agree upon a verdict. The defendant Pickrell has obtained three verdicts and the plaintiff one. The last trial, had May 26, 1892, resulted in a verdict and judgment for the executrix of Pickrell’s estate, from which the plaintiff has prosecuted this appeal.</p> <p>A. H. Pickrell died May 2,1879, and his will, in which Thomas L. Hume and Mary E. Pickrell were named as executors, was ma,de August 23, 1872.</p> <p>Upon the trial, and before offering the note and its endorsement, plaintiff offered a number of witnesses, who, having qualified to testify to the handwriting of Pickrell, examined the endorsement and pronounced it his genuine signature. There was no witness who saw him endorse the note. Plaintiff further introduced evidence tending to show that the original indebtedness of Hume to the bank commenced before the year 1875, and that Pickrell, who was his father-in-law, was connected therewith; that the debt had been reduced and renewed from time to time; that the note in suit was one of a succession of renewals of a former note of Hume that had been endorsed by Pickrell; and that .once or twice former notes with Pickrell’s endorsement had been protested. Plaintiff also introduced evidence tending to show that Pickrell had been a constant endorser of Hume’s paper, to one other person at least, from September 1878, to as late as January 28, 1879.</p> <p>Plaintiff next read in evidence certain correspondence between Prentiss, the cashier of the German-American Bank, and Thomas L. Hume, concerning his indebtedness. Prentiss wrote on January 18, 1875, to Hume, saying his loan had been extended to May 24, at which time he would be expected to pay $10,000 of it, or furnish additional collateral security to the amount of $13,000, secured by real estate. The bank was not then a national bank, but became one later. June 28, 1875, Hume wrote Prentiss enclosing collateral secured by trust deed. In the second letter, which is without date, he enclosed “ a new collateral note to replace the one that was inadvertently protested, and also the protest fees.”</p> <p>The third note, dated December 21, 1876, inclosed a new note and asked the return of the old one. These three letters were marked, and are referred to throughout the case as W. B. T. Nos. 1, 2, 3.</p> <p>Plaintiff also exhibited three letters as having been written and signed by A. H. Pickrell, which, however, had no relation to the transaction in question, and were not addressed to anyone connected therewith. These are called in the record W. B. T. 4, 5, 6.</p> <p>Defendant first introduced a number of witnesses, though not so many as plaintiff, who, having qualified themselves to speak, expressed the opinion that the endorsement was not in the handwriting of Pickrell. She also offered two experts, Ames and Carvalho, who were permitted to examine the signature to the will and to letters W. B. T. 4, 5, and 6, and compare them with the endorsement, which latter they pronounced a forgery. Defendant also proved that the body of the note was in the handwriting of Thomas L. Hume. One of the experts — Mr. Ames — expressed the opinion that the endorsement of Pickrell’s name was in the same handwriting as the body of the note, though made with different ink.</p> <p>On the cross-examination of some of defendant’s witnesses, plaintiff exhibited to them several paper writings purporting to have been, signed by A. H. Pickrell, which they pronounced genuine. These are designated in the record as W. B. T. 14, 15, 16, 17, 18, 19.</p> <p>These signatures were also exhibited to the experts, Ames and Carvalho, and used in their cross-examination with a view to weaken the weight of their evidence. Plaintiff had previously proved that the note in suit had been protested December 13, 1878, and notice thereof left at the office of A. H. Pickrell in Georgetown. Some evidence had also been introduced by defendant, tending to show that Pickrell had been in bad health about that time and later, and generally absent from his office; and this had been rebutted on behalf of plaintiff by evidence to the contrary.</p> <p>Plaintiff then offered the papers, W. B. T. 14, 15, 16, 17, 18, and 19, in evidence for the purpose of showing by their dates that A. H. Pickrell had been at his office and attending to his business just before and after the notice of protest was left for him. The evidence was rejected. Plaintiff then re-offered them as part of the cross-examination of defendant’s witnesses, to whom they had been exhibited! and to rebut their testimony concerning the peculiarity of Pickrell’s signature. They were then admitted, the court saying: “As a part of the cross-examination, to enlighten that and show the jury what the witnesses were talking about, these manual things are to be received, probably not for the purpose of comparison.”</p> <p>Plaintiff then introduced an expert as a witness — Mr. Hay — and submitted to him the Hume letters W. B. T. 1, 2, 3, offering to prove by comparison that they were not in the same handwriting as the signature of A. H. Pickrell, as endorsed on the note. They were also offered to the jury for comparison. Upon objection of the defendant, the court refused the offer. Plaintiff next offered the papers marked W. B. T. 14, 15, 16, 17, 18, and 19, to the witness and to the jury for comparison with the endorsed signature, which was also denied upon the objection of the defendant.</p>

<p>Hearing on an appeal by the complainants from a decree of the Supreme Court of the District of Columbia, holding an equity term, dismissing a judgment creditor’s bill.</p> <p>The Couet in its opinion stated the case as follows:</p> <p>The appellants, John H. McDaniel and Leigh Chalmer’s, in this case are judgment creditors of Joseph W. Parish, one of the appellees, and as such judgment creditors they filed a bill against the judgment debtor and a certain Jonas H. McGowan, charging that a. certain dwelling house and premises in the city of Washington had been purchased with money belonging to Parish, the debtor*, and had been conveyed to McGowan, who held the same in secret trust, for the use and benefit of Parish, the debtor, and for the purpose of hindering, delaying and defrauding his creditors.</p> <p>The bill called upon the defendants to answer the allegations fully and particularly, but expressly waived oaths to such answers. Parish and McGowan, however, both answered the bill under oath ; and they both expressly denied all fraud and collusion charged in the bill, and denied that the property had been purchased for Parish, or with his money. But they averred that the property had been purchased for the daughter of Parish, the debtor, and with her own personal means, earned by her laboi*, and that the property had been conveyed °to her by deed duly executed, by McGowan and wife.</p> <p>Upon the disclosures made in these answers, the plaintiffs obtained leave and filed an amended bill, in which the daughter, Emily E. Parish, was made a codefendant with the two defendants named in the original bill. In this amended bill it is charged that the whole transaction, of the purchase and conveyance of the property, was a fraudulent scheme, devised and concocted by the defendants, to cheat and defraud the creditors of Parish, and that the name of the daughter was used as a shield and a blind to deceive and keep off the creditors of Parish, the real owner of the property: That the daughter had no estate or means of her own; and that the money paid on the purchase of the property was in truth the money of the debtor, received by him under certain acts of appropriation, passed b„y the Congress of the United States. It is also charged that the deed made by McGowan and wife to Emily E. Parish was never in fact delivered to the latter, and was never placed upon record, until after the institution of this suit.</p> <p>By this amended bill, a full and particular answer, both to the original and amended bill, was required of the new defendant, Emily E. Parish, and also of McGowan to the amended bill, but no answer was required of the defendant Joseph W. Parish. The oath to the answers required by the amended bill was not waived, as were oaths to the answers to the original bill.</p> <p>The defendant McGowan answered the amended bill, denying all fraud and collusion charged, and averred the right of property to be in the daughter of J. W. Parish, as in his former answer. He also answered the special matters charged in the amended bill, and explained the circumstances under which the property was purchased for and subsequently conveyed to the said Emily E. Parish.</p> <p>The defendant Emily E. Parish answered under oath, and denied all fraud and collusion charged in both the original and amended bills, and set up and claimed right to the property in herself; and averred that it had been purchased with her own money, received from her father on account of services rendered by her, under a contract made with him for such services.</p> <p>Replications were entered to the answers, and proof was taken, the principal witnesses being Emily E. Parish and J. H. McGowan, two of the defendants; the former of which being called and examined at great length by the plaintiffs, and the latter by and on behalf of the defendants.</p> <p>The case was brought on to hearing before the chief justice of the Supreme Court of the District, and that learned justice, after argument and due consideration, passed an order dismissing the bill with cost. The plaintiffs have appealed.</p>

Hearing on an appeal by the defendant (leave having first been obtained) from an interlocutory decree of the Supreme Court of the District of Columbia, holding an equity term, setting aside as fraudulent an assignment by one partner of his interest in a portion of the partnership business, to his copartner, and directing an accounting between them. Statement oe the Case.

Motion by appellant for leave to file copies of certain papers, the originals of which were alleged to have been lost after having been filed in the court below. The racts are sufficiently stated in the opinion.

Hearing on a bill of exceptions taken by the plaintiff in an action of assumpsit. The facts are sufficiently stated in the opinion. 1. If a real estate agent procures a person ready, willing and financially able to make the purchase absolutely, on the terms fixed by the principal, and the latter accepts the proposed buyer, and enters into a contract with him respecting the sale and purchase of the property, he establishes a prima facie right to his commissions.

Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia, holding a law term, in a case appealed to that court from a justice of the peace. The Court in its opinion stated the case as follows: The single question presented on this appeal is one of jurisdiction of the court below to render the judgment appealed from, as upon default of an appearance of the present appellant in that court, in obedience to a summons issued against him.

Hearing on a bill of exceptions by the plaintiff in an action of ejectment. The Court in its opinion stated the case as follows: This is an action of ejectment brought by J. J. Johnson, trustee, to recover a square of land in the city of Washington. This square is a part of the original tract of 494 acres of land known as “Jamaica,” before the laying out of the city of Washington, and is, with the exception of about 50 acres, included in the original plan and survey thereof.

Hearing on an appeal by the plaintiff from an order quashing a writ of attachment in an action of assumpsit. The facts are sufficiently stated in the opinion. Delaplain v. Armstrong, 21 W. Va. 211; Kneeland on Attach., Sec. 436 ; Drake on Attach., Sec. 100, 93; Meyers v. Whiteheart, 24 S. C. 200 ; Bank v. Loncheim, 55 Hun. 396 ; Richter v. Wise, 9 S. C. N. Y. 70; Zaregal v. Benoit, 33 How.

Hearing on an appeal by the plaintiffs from an order quashing a writ of attachment sued out in an action of assumpsit.

<p>Hearing on an appeal by the plaintiff from an order quashing writ of attachment.</p>

Hearing on an appeal by the plaintiff (leave having-first been obtained) from an interlocutory order, overruling a motion for judgment under the Seventy-third Rule for the alleged insufficiency of an affidavit of defense.

Hearing on an appeal by the plaintiff from a judgment on demurrer to an amended declaration in an action on a policy of insurance.

<p>Hearing on a bill of exceptions by the plaintiff in an action of ejectment.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is a suit at common law in ejectment; and the only question presented on this appeal is whether the court below erred in excluding from the consideration of the jury the record of a certain deed of conveyance that had been offered in evidence.</p> <p>The property in controversy is lot No. 5, in square No. 161, in the city of Washington, of which the appellant, Sarah Maud Hevner, who was plaintiff in the court below, claimed in her declaration, filed on the 15th day of June, 1892, to have been lawfully possessed on the 13th day of June, 1892, and to have been on the last mentioned day unlawfully ejected therefrom by the defendants, Charles M. Matthews and William C. Hill, and to be yet by them unlawfully excluded therefrom: and she claims the possession of the lot.</p> <p>It appeared from the testimony that, in the original division of the property contained within the city of Washington between the United States and the original proprietors, this lot was assigned to the United States, and that the United States subsequently disposed of it by deed of conveyance to one Nathaniel Cutter, a citizen of New Hampshire. By a deed dated June 20, 1806, and transcribed among the land records of the District of Columbia, Nathaniel Cutter conveyed or sought to convey, the property to one Edward Parry. It is this deed, or rather the record or transcript of it, that is in controversy in' this case, so far as concerns the present appeal. The plaintiff deduces title by divers mesne conveyances from Parry.</p> <p>It also appeared in evidence that the defendants were in possession of the property as trustees under the will of Wm. W. Corcoran, deceased, who had bought the lot at a tax sale in the year 1833 ; that the property was worth upwards of $40,000 ;ythat the plaintiff had received it without any valuable consideration from her father, one Peter Hevner; and that Peter Hevner had procured the title from one George G. Campbell, a resident of West Virginia, under an agreement that Hevner, who knew that Corcoran was then in possession, should pay for it $1,000 in cash and $4,000 additional “ when the title should be judicially determined to be in said Peter Hevner.”</p> <p>At the trial, the record of the deed from Cutter to Parry was offered in evidence — for the original deed was not produced — and was admitted against the objection of the defendants and “ subject to the further opinion of the court.” The court, upon consideration of it, subsequently ruled it out, and held that the deed had not been lawfully acknowledged and recorded, and that the record therefore was not properly admissible in evidence. And this deed being a necessary link in the plaintiff’s chain of title, he directed the jury to find a verdict for the defendants, which was accordingly done. From this ruling the plaintiff has prosecuted the present'appeal.</p> <p>The deed in controversy,* which is given in full in the record with its several acknowledgments, and which bears date on June 20, 1806, appears to have been executed in New Hampshire, where Cutter resided, on the day of its date, to have been duly acknowledged by him on that day before one Daniel Humphreys, a notary public and justice of the peace in that State, who appended his name to the deed as a witness with one Washington Pierce. Appended also to the deed is the signature of one William Yeaton as a witness; but he is not mentioned in the certificate of acknowledgment, although Pierce is mentioned. The deed contains full covenants of general warranty, and it appoints, in accordance with the provisions of law then in force, William Yeaton and Washington Pierce, both stated to he of Alexandria, then in the District of Columbia, as his attorneys to appear before two justices of the peace in the County of Washington, in the District of Columbia, and to acknowledge the deed for him as his deed. Only one of the two attorneys, William Yeaton, appeared; and before two justices of the peace in the District of Columbia, he first made oath, as one of the two or three subscribing witnesses, to the due execution of the deed by Cutter in the presence of the affiant, and to his own attestation of it at the time by the request of the grantor. Then, as attorney and by virtue of the power conferred upon him in the instrument itself, he acknowledged the deed to be the act and deed of Cutter. The failure of Pierce, the other attorney and subscribing witness, to make acknowledgment of the deed is not accounted for in any manner.</p> <p>The question, therefore, is presented whether the record of a deed so executed and acknowledged is now properly admissible in evidence.</p>

<p>Hearing on a bill of exceptions by one of three defendants in an action of damages by husband and wife for personal injuries to the wife.</p> <p>The Court in its opinion stated the case as follows:</p> <p>The plaintiffs, George W. Bolling and Caroline H. Bolling, his wife, sued the District of Columbia, the United States Electric Co. and the Western Union Telegraph Co. to recover damages for injuries received by the wife. On October 14, 1891, plaintiffs were riding south on the west side of Fourteenth street in the city of Washington, in a buggy drawn by a single horse which the husband drove. As they approached Thomas Circle, a “ telegraph pole ” which stood in the adjacent sidewalk suddenly fell into the street, bringing down a number of wires attached thereto and to a pole on the south side of the circle. There were at least six wires attached to the pole which belonged to the District of Columbia, and were in use for fire alarm and police services. The wires falling through the limbs of the trees made a loud and unusual noise, which frightened the horse. He reared and turned suddenly to the left, or east, overturning the buggy and throwing plaintiffs upon the street. Mrs. Bolling was caught under the overturned buggy and dragged some little distance, sustaining severe injuries, from which ’ she suffered much pain, and so forth. The horse was a very gentle and safe animal, which plaintiffs had hired for the trip from their home in Fairfax County, Virginia, to Washington and back. They had frequently hired the same horse for driving into the city and had found him safe. He was used to the scenes and sounds of the streets, including “ cable ” and steam cars. Bolling was “ slightly paralyzed ” in the left side, and this “ affected to some extent his left hand and arm, but not so that he could not use them.” His right hand and arm were sound and strong. He had driven the horse frequently for two years before the accident, and his wife often rode with him.</p> <p>The plaintiffs, being uncertain as to the ownership and uses of the pole and wires, framed the declaration in three counts. The first charges that all the defendants are “the owners and proprietors ” of the line of poles on Fourteenth street, including the one which fell, and it was the duty of each and all to keep and care for them, and so forth. The second count alleges that the electric'company was the owner, and that the District of Columbia and the telegraph company were using and maintaining them for the support of their respective lines of wires, and it was the duty of each and all to maintain them properly. The third count cut no figure in the trial, and need not be mentioned further.</p> <p>It -was proved that the poles were erected by the telegraph company in 1872 for use in its business. In 1875 the telegraph company consented to the use of the poles by the Commissioners of the District, who strung certain wires thereon and used them. In 1888 the telegraph company abandoned the use of the poles and sold them to the electric company, which used them for its wires for street lighting, at the same time acquiescing in the use of them by the District officers. The electric company laid a conduit in the street, and in May or June, 1890, had all its wires laid therein. It then informed the Commissioners that it. had no use for the poles, which were then, or would become dangerous, and asked permission to unearth and remove them. The Commissioners declined to let the poles be removed, because necessary to their fire alarm and police services, whereupon the electric company informed the Commissioners that they might have the poles. Thanks were given for this gift, because the Commissioners said they had no money with which to pay for them. They continued to use the poles to the time of the accident, and have done so since. Two days after the accident the electric company wrote to the Commissioners referring to its abandonment of the polos in 1890, the use of them by the Commissioners, and their refusal to permit their removal. It called attention to the accident, and asked leave to remove the poles. The Commissioners at once passed a formal order reciting their use of the poles since 1876, the necessity for their continued use, and relieving the electric company from all responsibility for the poles. The Commissioners repaired the line at once. It was proved that the pole which fell was completely rotten. Some witnesses said there was “ not a sound fibre of wood ” in the pole, at'the point where the break occurred, near the surface of the sidewalk. There was some testimony to show that while thoroughly rotten within, there was a thin rim of apparently sound wood on the outside of the pole. There was no storm or severe wind, and nothing to warn plaintiffs of danger. There was no evidence that Bolling was driving carelessly or that he negligently drove into danger. There was no substantial conflict in the evidence upon any point.</p> <p>There being no evidence whatever to inculpate the Western Union Telegraph Co., a verdict was directed to be returned for it. The charge made plaintiffs’ right to recover against the electric company turn upon the truth of its claim that, long prior to the accident, it had given the poles to the District of Columbia, and had ceased to use them for any .purpose. The general charge' covered fairly the issues in the cause, and the exceptions taken by defendant relate exclusively to the refusal of certain special prayers for instructions offered on its behalf. The jury found for the electric company and against the District of Columbia, assessing plaintiffs’ damages in the sum of $2,000.</p> <p>Marion v. Skillman, 127 Ind. 130; Neff v. Wellesley, 148 Mass. 487; Smith v. Wildes, 143 Mass. 556; Harris v. Uebelhoer, 75 N. Y. 169; Winn v. Lowell, 83 Mass. 177 ; Davenport v. Ruckman, 37 N. Y. 568 ; Gray v. District, 2 App. D. C. 500.</p> <p>2 Add. on Torts, 1131; Sessions v. Johnson, 95 U. S. 347; Thomp. on Neg. 1148, Sec. 3; Beach on Contr. Neg. 19; Railroad Co. v. Thomas, 79 Ky. 160; Washington v. Railroad, 17 W. Va. 190 ; Railroad v. Patton, 31 Miss. 156 ; Railroad v. Karns, 13 Ind. 87, 89 ; Tuff v. Wannan, 2 C. B. N. S. 740; Pollock on Torts, 375, 376, 377 ; Railroad v. Kean, 28 A. & E. RR. Cas. 580, 584; Farlow v. Kelly, 108 U. S. 288.</p>

<p>Hearing on a bill of exceptions by one of three defendants in an action of damages for personal injuries.</p>

Hearing oh a bill of exceptions by the defendant in an action for damages for personal injuries. Statement op the Case.

<p>Hearing on an appeal by the defendants from a judgment in an action of replevin.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is a suit in replevin, instituted by the appellees, Hermann Baetjer and Ludwig Meyerstein, as plaintiffs in the court below, to recover 350 barrels of cement, of the alleged value of $927.50, which came into the hands of the appellants, Michael J. Colbert and J. Nota McGill, defendants in the court below, as assignees of one William C. Lewis, under a voluntary deed of assignment to them for the benefit of creditors, and which the plaintiffs claimed under a previously executed but unrecorded bill of sale from William C. Lewis & Co.</p> <p>The facts of the case, about which there seems to be no controversy, are that in the summer of 1890, the appellees sold 350 barrels of cement to the firm of William C. Lewis & Co., composed of William C. Lewis and George T. Parks; that subsequently, on October 2, 1890, having reason to doubt the solvency of William C. Lewis & Co., the appellees procured from them, through George T. Parks, a bill of sale of this cement; that the bill of sale was never acknowledged or recorded; that the goods intended to be covered by the bill of sale were permitted to remain in the warehouse of William C. Lewis & Co., subject to the disposal of the latter, although the bill of sale specified that they should be subject to the order of the appellees; that on November 1, 1890, George T. Parks withdrew from the firm of William C. Lewis & Co., having sold his interest therein to his partner; that William C. Lewis continued the business under the same firm name; that on the 18th of December, 1890, Lewis, in the name of the firm, made a general assignment of all his property, specifying therein the lime and cement in his warehouse, to the appellants as trustees for the benefit of his creditors, with preferences to two designated creditors ; that these assignees or trustees took possession of the property under this assignment to them ; and that they refused to deliver the cement to the appellees upon demand made for it by the latter. It seems, also, that, at the time of the institution of the suit, only 101 of the 350 barrels were found in the warehouse of Lewis & Co., of the value of $267.65 ; and these were taken and delivered to. the appellees upon the writ of replevin.</p> <p>At the trial, upon this condition of facts, each party moved for a verdict in their own favor; and the court directed a verdict in favor of the plaintiffs for one cent damages and costs, the property having been already delivered to them upon the writ. And judgment was entered accordingly. Prom this judgment the defendants have duly prosecuted the present appeal.</p> <p>1. The bill of sale under which the appellees claim title was null and void under the Maryland act of 1729, and no title to the goods in controversy passed thereunder.</p> <p>It is conceded that the bill of sale in question was never acknowledged and never recorded, and if Section 5 of that act stood alone, there would be no question that the bill of sale was inoperative and void; but it is contended that the bill of sale being valid between the parties, is, under Section 6, binding on the appellants, who, as assignees of Lewis & Company, stand in their shoes and take only the rights that Lewis & Company themselves had.</p> <p>It has been frequently held in Maryland that this statute was intended for the benefit of creditors, as the preamble indicates. Gouch v. Edelin, 5 Gill, 101; Hudson v. Warner, 2 H. & J. 415; Garrett v. Hughlett, 1 H. & J. 4; Hambleton v. Haywood, 4 H. & J. 445. So that if the present controversy were between the creditors of Lewis & Company and the appellees, the bill of sale would undoubtedly be held void as against the latter. We contend that in this action the assignees are not only the representatives of the assignors, vested with the title owned by the latter, but they are in addition trustees for the creditors, charged with the duty of preserving the assets coming into their hands and administering the same for the benefit of the creditors.</p> <p>The deed of assignment is an instrument under seal, executed and acknowledged with all the solemnity usually attending the execution of deeds, and expressly imposing upon the assignees the duty of protecting the creditors of the firm. Under this instrument, are the assignees mere volunteers, succeeding only to the title of their assignors, or are they purchasers for a valuable consideration ? The very moment that this deed was executed and recorded it removed all the property of the firm beyond the reach of the firm’s creditors, and the only remedy left to the creditors was to see that the trust was properly administered by the assignees. So that by its effect, and indeed by the very terms of the deed, the assignees are not only the representatives of the assignors, but they are the representatives of the creditors, vested with all the rights of the property of the insolvent that the creditors themselves could enforce by legal process. If no assignment had been made, the creditors could have pursued these goods and subjected them to the payment of their claims, and no good reason appears to exist why their trustees should not do the same thing for their benefit.</p> <p>The assignees of an insolvent debtor in the District of Columbia, represent the creditors of the insolvent and can avail themselves of all equities that may exist in favor of such other creditors. Bank v. Herbert, 8 Cranch, 36 ; Casey v. Caveroc, 6 Otto, 467; Spring v. Short, 40 N. Y. 544; Hanes v. Tiffany, 25 Ohio St. 549; Adam, v. Merchants’ Bank, 2 Fed. Rep. 174. An assignee is clothed with all the necessary power to obtain possession of the property assigned and to collect debts by process of law, and he may avoid a previous fraudulent assignment. Burrill on Assignments, 486; Van Heusen v. Radcliffe, 17 N. Y. 580; Englebert v. Blanjot, 2 Whart. 240.</p> <p>In Crooks v. Stuart, 7 Fed. Rep. 800, it was held that the assignee might prosecute any suit to recover assets in the hands of third parties, or to enforce the payment of claims that could have been prosecuted by the creditors themselves. See also Wells v. Langheim, 20 Fed. Rep. 183; Simon v. Oppenheimer, 20 Fed. Rep. 553. A mortgage void as to creditors is void as against an assignee in trust for the benefit of creditors. Hanes v. Tiffany, 25 Ohio, 549; Kilbourne v. Fay, 29 Ohio, 264. In Missouri, assignees have been treated as bona fide purchasers for a valuable consideration. Gates v. Labeaume, 19 Mo. 17; Bank v. Hughes, 10 Mo. App. 7. And the same rule prevails in Virginia and West Virginia. Evans v. Greenbow, 15 Grattan, 153; Bank v. Knox, 19 Grattan, 739 ; Harrison v. Bank, 19 W. Va. 424. The same ruling was made in Dey v. Dunham, 2 John. Oh. 188, where the court held that a general assignee in trust for creditors was to be considered as a bona fide purchaser against a prior unrecorded mortgage. See also 8 Lea (Tenn.), 67; Spring v. Short, 40 N. Y. 544. An assignment is founded on a valuable consideration. Although the conveyance is in form to the assignee it is in effect to the creditors and they are the real beneficiaries. Bump on Fraud. Con. 360.</p> <p>These authorities establish the principle that under the terms of the Maryland act this unrecorded bill of sale is void as against the appellants, and cannot be set up by the appellees in a proceeding like the present. The appellees allowed the goods to remain in the possession of Lewis & Company, and thereby allowed innocent third parties to extend credit to the firm on the faith of its apparent ownership of the property, and the case is thus brought within the spirit and the letter of the law. To allow the appellees to set up this unrecorded bill of sale in the present suit would be to defeat the purpose for which the law was made.</p> <p>2. The bill of sale relied upon by the appellees is fraudulent and void, independently of the statute. It appears from the record that some secret arrangement, not fully disclosed by the proof, was made between Lewis & Company and the appellees, by which the former, although apparently parting with the title to the goods in controversy, were to be allowed to retain them in their warehouse, without giving the public any evidence or notice of the change of title, and were allowed to sell them, and to deal with them in all respects as if the goods still remained the property of the firm. The execution of the bill of sale was very shortly followed by the execution of the deed of assignment, and no notice either before or after the assignment was ever given to the assignees of the existence of the alleged bill of sale. It was undoubtedly within the power of Lewis & Co. to protect the firm of Baetjer & Meyerstein by either having the bill of sale recorded, or by delivering the actual custody of the goods to the appellees. The failure to do the latter, in the absence of any explanation, creates a presumption of fraud. Casey v. Caveroe, 6 Otto, 46.</p> <p>But whether the presumption of fraud be conclusive or not, the court erred in taking the question away from the jury, and directing the verdict against the appellants. There was sufficient evidence of fraud to require the submission of the question to the jury. Baetjer and Lewis, the parties who consummated this fraudulent design, were both accessible, but neither were called to testify, although it will be conceded that Lewis, a resident of the city of Washington, was actualty present in the court room during the trial.</p> <p>At common law a mortgage of chattels which permits the mortgagor to retain possession of the property, and to deal with it as his own, is void as against a creditor who becomes such without notice of the mortgage. Crooks v-Stuart, 7 Fed. Rep. 800. And in Hamilton v. Russell, 1 Cranch, 309, the Supreme Court say that: “ Fraudulent conveyances, which are made to secure a debtor a beneficial interest while his property is protected from creditors, will be most effectually prevented by declaring that an absolute bill of sale is itself a fraud unless possession accompanies and follows the deed.” See also Nickerson v. Nickerson, 28 Md. 382 ; Randall v. Cook, 17 Wend. 53.</p> <p>The failure to acknowledge and record the bill of sale does not invalidate the sale as against the party making th.e same, or his assigns; and the appellants can have no other or greater right as against the appellees than their assignor could have had. An assignee, in a general assignment for the benefit of creditors, is not a bona fide purchaser for value. Burrill on Assignments, Sec. 349 ; Moses v. Thomas, 26 N. J. L. 124; Van Wagner v. Moses, 26 N. J. L. 570. It is true such assignee does, in one sense, or for certain purposes, represent creditors, but he also represents the assignor, and is barred and estopped by all the honest acts of his assignor; and the bill of sale in this case was an honest transaction, being an endeavor to apply a portion of his estate to the payment of a bona fide debt. The assignee “ does not represent the creditors who may have superior claims, and,he is not armed with their powers.” Marks’s Appeal, 85 Pa. St. 231; Burrill on Assignments, Sec. 352 n. 4. The question here arises between assignees who, in this case do not in fact represent general creditors, but only preferred creditors, and another preferred creditor, who is prior in time. When the bill of sale was made to Baetjer & Meyerstein, the goods were set apart from the other goods in stock, and there is no evidence to show that any subsequent creditor trusted the assignor on the faith of his owning said goods, or that he incurred any debts after that date.</p> <p>An assignee in bankruptcy has no greater rights in respect to unrecorded deeds made by the debtor than the debtor himself would have; and, certainly, an assignee voluntarily appointed by the debtor could have no greater rights than one appointed under the provisions of the statute of bankruptcy. 1 Jones on Mortgages, Sec. 468. At common law, the assignee for the benefit of creditors takes no better title and no higher rights than the assignor himself had. Chace v. Chapin, 130 Mass. 131.</p> <p>The unrecorded bill of sale is not void as to the seller, or his assigns, or anyone “ claiming under him or them.” If the' same can be declared void here, it is on the application of the assignees themselves, or on the application of parties claiming under them by virtue of the contract relations between the seller and them, namely the creditors who &i'& preferred in the assignment. The title of appellants to the property in question, being solel3r a derivative one under the assignment, they can assert and enforce no claim or right thereunder which the assignor could not legally have enforced had no assignment been made. Jones on Chattel Mortgages, Sec. 363; Flower v. Cornish, 25 Minn. 473. The assignee only represents the creditors in respect to their rights and interests under the assignment, and not as to those rights belonging to them independent of its provisions. Brownell v. Curtis, 10; Estabrook v. Messersmith, 18 Wis. 573.</p>

<p>Hearing on a bill of exceptions by the defendant on the trial of an indictment for murder.</p> <p>The Court in its opinion stated the facts as follows :</p> <p>The appellant in this case, Charles Hopkins, has been tried and convicted, and is now under sentence of death, for the murder of Adam Gordon. He has brought his case here for review, upon alleged errors committed in rulings of the trial court. And to a clear understanding of the questions presented on the exceptions taken by the appellant, it may be proper that a brief statement of the facts be made.</p> <p>It appears that, on the 14th of December, 1893, the appellant quarreled with Gordon, the deceased, in a saloon where the latter was employed, and the appellant struck Gordon in the face with his fist, whereupon Gordon struck the appellant on the head with a beer bottle. The parties were separated, and the appellant went away. This was near about noon in the day. Some time later in the day, according to the evidence, the appellant was heard to declare that he would “ get even with Gordon,” and again, that he was “ going to kill Gordon.” Some time thereafter, about 9.30 o’clock of the evening of the same day, the appellant returned to the saloon where Gordon was employed, found the latter seated in a chair with his head upon his hand, walked up to within four or five feet from him, and drawing from his overcoat pocket a brickbat, threw it with great force at the head of Gordon, striking him on the side of the head, and knocking him at once insensible. At the time this blow was struck, Gordon being admonished of the approach of the appellant, was in the act of rising from his seat, but, upon receiving the blow, fell back into the chair. At the time of inflicting this blow with the brickbat, no words were passed between the parties. The appellant immediately retired, and went into the'street; and so soon as he was sufficiently revived or recovered Gordon walked home. From this time on to the time of his death, Gordon continued to complain of the injury on his head, though he was most of the time able to be about, and did some work, until a few days before his death, which occurred on the 4th day of January, 1894. An autopsy was had, and it was manifest that death was the result of inflammation of the membranes of the head, which was directly caused by the blow inflicted by the appellant. The appellant himself was examined as a witness on the trial, and he testified that he did not throw the brickbat at the deceased until he saw the latter in the act of rising from his seat with a beer bottle in his hand.</p> <p>It also appears, that a few days after the occurrence, the appellant was arrested, and after a detention of about a week, was tried in the Police Court of this District, on a charge of an assault and battery upon Gordon, then living, and was convicted and sentenced to jail, and before the expiration of the period of confinement Gordon died.</p> <p>[At the trial, Dr. Schaeffer, a witness produced by the Government, who had made the autopsy on the body of the deceased, upon cross-examination was asked by counsel for the defendant the following question:</p> <p>“ Now, supposing the blow in this case to have been received three weeks before death and to have been followed by no medical treatment whatever, and the utter disregard of all treatment by the patient himself; in other words, engaged in active occupation all the time, and using alcohol, and not keeping quiet or resting; in fact, every motion and action on the part of the deceased being entirely opposite to what his physician would have prescribed for him, would that be or not be sufficient cause to render an injury — which was not necessarily or likely fatal — fatal ? ”</p> <p>The question was objected to, the objection sustained, and the defendant excepted.</p> <p>At the close of the evidence, the defendant prayed the following instructions to the jury, the third and ninth of which were granted and the others refused, and to which refusal the defendant excepted:</p> <p>“1. The jury is instructed as matter of law that in view of the proceedings against this defendant in the police court, record of which has been admitted here in evidence, the Government is estopped from establishing the intent to kill which is necessary to convict the defendant of murder, and therefore the jury cannot in this case find the defendant guilty of murder.</p> <p>“2. The jury is instructed that if they believe from the evidence that the defendant had reasonable grounds to believe and did believe that the deceased was at the time of the assault about to inflict on him bodily harm, and that he used no greater force than was necessary to protect himself from real or apparent danger, they should acquit.</p> <p>“ 3. The jury is instructed that the defendant is presumed to be innocent until his guilt is shown beyond a reasonable doubt, and that if the jury has a reasonable doubt they should acquit.</p> <p>“ 4. The jury is instructed that if they believe from the evidence that the injury to deceased was only one of the causes of the disease of which decedent died, yet they also believe that it was such an injury as with ordinary care and attention would not have caused disease resulting in death, so that his death was due not to the blow but to neglect on the decedent’s part and lack of proper medical treatment, they should acquit.</p> <p>“ 5. The jury is instructed that if they believe from the evidence that the skull of the deceased was unusually thin and also malformed, and the injury caused him by the blow was such as would not have been caused to a human being whose skull was of the usual thickness and formation, they should acquit.</p> <p>“6. The jury is instructed that the burden of proof is on the prosecution to establish beyond a reasonable doubt that the cause of the death was the blow received by decedent from the brick thrown by defendant, uncaused by aggravated and unusual formation of brain or skull and unaided by neglect and lack of proper treatment for the blow received.</p> <p>“ 7. The jury is instructed that the weapon used, a quarter brick, is not a deadly weapon and malice cannot be presumed from its use.</p> <p>“8. That the court instruct the jury that if the accused at the time he threw the stone had, in good faith, a reasonable belief, founded upon the facts ás they appeared to him at the time, that he was in imminent peril of his life or in danger of great bodily harm, then his act was justifiable, even if his belief was a mistaken one, and the verdict should be one of acquittal.</p> <p>“ 9. If the jury believe that the accused at the time he threw the stone had, in good faith, a reasonable belief, founded upon the facts as they appeared to him at the time, that he was in imminent peril of his life or in danger of great bodily harm at the hands of the deceased, from which he could not reasonably save himself, except by the use of the force he did use, then his act is justifiable, even if his belief was a mistaken one, and the verdict of the jury should be one of acquittal.” — Reporter.]</p> <p>1. Unless the blow inflicted by the defendant caused the death he was entitled to an acquittal. It was certainly his right to have this fact determined, and the information sought by the question excepted to would have a direct bearing on the fact itself. Neglect and maltreatment will not excuse except in cases where doubt exists as to the character of the wound. State v. Corbett, 1 Jones L. (N. C.) 267 ; Mc-Allister v. State, 17 Ala. 434. There was nothing in this case which established beyond a doubt the character of this wound, and the line of examination sought to be introduced by this question might have resolved this point in the defendant’s favor. Greenleaf on Ev., Vol. 3, Par. 139 ; State v. Scott, 12 La. Ann. 274; State v. Briscoe, 30 La. Ann., Pt. 1, 433.</p> <p>2. The defendant was convicted of assault and battery and sentenced therefor. Such conviction was an acquittal of assault with intent to kill, for he could have pleaded this conviction to an indictment for that crime. If he was not guilty of assault with intent to kill, the element of malice necessary to the crime of murder is wanting from this occurrence, and the death of the assaulted party would certainly not raise a presumption of malice. To sustain an indictment for assault with intent to kill the evidence must be such as to warrant a conviction for murder had death resulted from the assault. McCoy v. State, 8 Ark. 451; Cole v. State, Í0 Ark. 318 ; Lace-field v. State, 34 Ark. 275; 1 Russ, on Crimes, 719 ; Whar. Crim. Law, 467; Stark on Ev. 53; Brown v. State, 110 Ind. 486.</p> <p>3. In a case in Kentucky, where the circumstances were more aggravated than in this case, a prayer identical with the second prayer of the defendant here was granted. Had this prayer been granted it would have aided the defendant, and the error of the court in refusing to grant it injured him before the jury. 18 S. W. Rep. 528. The facts in this case show that the entrance of the defendant in search of his friend, the overt act of the decedent in rising with a beer bottle in his hand, and the throwing of the brick were nearly simultaneous; hence there was no opportunity for retreat or escape, and that element should not have been forced on the attention of the jury, as was done by the ninth prayer. Logue v. Comm., 2 Wright (Pa.), 265; Regina v. Thurborn, 1 Den. C. C. 387. The right of self defense is not impaired by mere preparation for a wrongful act. Cartwright v. State, 14 Tex. App. 486.</p> <p>4. The question as to what is a deadly weapon depends largely on the circumstances of each particular case; but it may be laid down as a general rule that a deadly weapon, from the use of which malice may be inferred, is not one a blow from which would ordinarily produce death, but one from which, as it was used, death would probably result. Sylvester v. State, 71 Ala. 17.</p>

Hearing on a bill of exceptions by the defendant in an action on a contract of guaranty.

Hearing on an appeal by the defendant from an interlocutory order (leave first having been obtained) overruling a demurrer to a bill of complaint. The Court in its opinion stated the case as follows: This is an interlocutory appeal, allowed by special order of this court, from an order of the Supreme Court of the District of Columbia overruling a demurrer to a bill in equity.

<p>Hearing on an appeal by the defendant from a judgment under tho Seventy-third Rule in an action on a promissory note and two bills of exchange.</p> <p>The Court in its opinion, stated the case as follows:</p> <p>This is another case arising under the Seventy-third Rule of the Supreme Court of the District of Columbia. Tho action was brought by the appellee, William A. Hammond, upon a promissory note and two bills of exchange, against the appellant, Joseph S. Lawrence, as maker of the note, and drawer and indorser of the bills of exchange. The declaration contains four counts; the first three being special — one upon the note, the other two upon the bills of exchange — and the fourth count is a common count, for money lent, and money paid by the plaintiff to and for the defendant, and for money received by the defendant to the use of the plaintiff, and for money found to be due by the defendant to the plaintiff on accounts stated. The amount claimed is $10,000, with interest.</p> <p>To this declaration the defendant pleaded to the first three counts of the declaration : 1st. That he did not promise and assume as alleged; 2d. That the money claimed in the first three counts had been paid and settled by other obligations of the defendant, not now in suit; and, 3d. That he is not indebted as alleged in the fourth count.</p> <p>The plaintiff filed an affidavit * with his declaration, under the rule of court; and the defendant filed an affidavit† of defense with his pleas, under the same rule.</p> <p>The plaintiff moved for and obtained judgment under the rule, for the full amount claimed, for -want of sufficient affidavit of defense; and the defendant objected to such judgment, both upon the ground that the affidavit of the plaintiff was not sufficient to entitle him to judgment under the rule, and that the defendant’s affidavit was sufficient to entitle him, the defendant, to regular trial.</p> <p>1. Plaintiff’s affidavit and declaration, so far as the two bills of exchange sued upon in said declaration are concerned, are insufficient to entitle the plaintiff to recover. Eudlich on Affidavit of Defense, Sec. 283; James v. Davis, 3 Mackey, 158; Bond v. Shepherd, 3 Mackey, 367, 369; Foertsch v. Germuiller, 3 App. D. C. 340 ; Burke v. McKay, 2 Howard, 66; Young v. Bryan, 6 Wheat. 146; Bank U. S. v. Leathers, 10 B. Mon. 64; Ocean City Bank v. Williams, 102 Mass. 141; Phoenix Bank v. Hussey, 12 Pick. 483; Garter v. Union Bank, 7 Hump. 528; Daniels on Neg. Inst., 926 et seq.; Slacum v. Pomeroy, 6 Cranch. 221; Byles on Bills, 398 ; Armani v. Gastrique, 13 M. & W. 443; Wilson v. Lenox, 1 Cranch, 194; Wilkins v. McGuire, 3 App. D. C. 448 ; Mathews v. Sharp, 99 Penn. Stat. 560.</p> <p>2. The court erred in holding defendant’s affidavit insuf•ficient. Feust v. Fell, 6 W. N. C. 43; Selden v. Neemes, 43 Penn. Stat. 421; Bank v. Smith, 11 Wheat, 171, 172, 179, 180; Thornton v. Weser, 20 D. C. 233; Dailey v. Morgan, 21 D. C. 88; Picket v. Isgrigg, 10 Biss. C. C. 230; Indianapolis RR. v. McDin, 82 Ind. 435; Ruff v. Ruff, 85 Ind. 431; Vigo, etc., v. Brumfiel, 102 Ind. 146; Lake Shore, etc.,. v. Foster, 104 Ind. 202; Berry v. Griffin, 10 Md. 27; Witherly v. Man et al., 11 Johns. 516 ; Cox v. Boone, 8 W. Va. 500; Wolf v. Finks, 1 Penn. Stat. 435 ; Hilliard v. Smith, Comb. 19; Randolph on Com. Paper, 159; Du/nlop v. Silver, 1 Cranch. 27; McDonough v. Kane, 75 Ind. 181; Daniel on Neg. Inst., Secs. 68 and 81a; Johnson v. Hille, 2 Clark, 1274; Endlich on Aff. Defense, 629; Rand v. Lore, 5 W. N. C. 236; Slow v. Russell, 36 111. 18; Chrisman v. Hodges, 75 Mo. 413; Hargrave v. Conroy, 19 N. J. Eq. 281; Iowa Co. y. Foster, 49 Iowa, 676.</p> <p>1. Objection is made here for the first time of the want of" averment of protest of the drafts described in the second and third counts. But with regard to this it is only necessary to say that the averment that the drafts were “ duly presented for payment and were dishonered, whereof the defendant had due notice ” is in accord with the abbreviated forms of actions in use in the District of Columbia, which were held sufficient by this court. Wilkins v. McGuire, 2 App. D. C. 448.</p> <p>It cannot be said that the plaintiff has not set out a cause of action in precise and distinct terms, which, standing alone, would entitle him to judgment. But he goes still further and shows that defendant repeatedly declared his intention of repaying the $10,000, offering even to given as security a mortgage on a farm he owned in Maryland.</p> <p>Nowhere in defendant’s affidavit are any grounds of defense shown. Taking it “ as absolutely true and upon all the facts properly stated as conclusive,” no reason is shown why the plaintiff should not have judgment.</p> <p>The judgment of the court below can be sustained on the common counts alone, the pleas thereto and the affidavit annexed to the declaration. Wilkins v. McGuire, supra.</p>

<p>Revised Statutes, Construction of ; Married Women, Sole and Separate Estate op ; Ejectment ; Real Estate, Sale op, by Executor.</p> <p>1. If the meaning of the Revised Statutes is plain, the court will not recur to the original statutes to see if errors were committed in the revision, but may do so to construe doubtful language employed.</p> <p>2. Where a husband in order to vest the title of his real estate in his wife transfers it to a third person who contemporaneously and for a nominal consideration conveys it to the wife, she acquires the property “ by gift and conveyance from her husband,” within the meaning of the Married Womans’ Act (R. S. D. O., Sec. 727), and holds it as her general estate, subject to her common law disabilities as a feme covert; following Cammaek v. Carpenter, 3 App. D. C. 219.</p> <p>3. Under the same act, property so acquired by a married woman cannot be conveyed by her, without the joinder of her husband, or devised by her, so as to deprive him of his marital rights.</p> <p>4. In such a case, where the deed from the third person to the wife is an ordinary deed in fee simple, it will not have the effect of creating a sole and separate estate in the wife, which will enable her either at law or in equity to dispose of the property by deed or will irrespective of her husband.</p> <p>5. A mere equitable estate cannot in an action of ejectment be set up to defeat a legal estate.</p> <p>6. Where a will directs that real and personal estate be sold, and after deducting funeral and other expenses, that the proceeds should be distributed in a certain manner, the executor named in the will has an implied power to sell and convey the real estate.</p> <p>7. In an action of ejectment by a daughter to recover as heir at law real estate of which her mother died seized, the death of the father of the plaintiff must be shown either by positive proof or presumption, where he, if living, would be entitled to an estate by the curtesy.</p>

Hearing on an appeal by the complainant from a decree dismissing a bill for an injunction.

<p>Hearing on a bill of exceptions by the United States in an action on a bond.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Hearing on a bill of exceptions by the defendant in an action on a policy of insurance.</p> <p>The Court in its opinion stated the case as follows:</p> <p>This is a suit upon a combined accident and life policy of insurance. The appellant, The United States Mutual Accident Association of the City of New York, is what is called a mutual benefit association, which pays the beneficiaries of its policies, or more correctly speaking, its certificates of membership, through a system of assessments made upon members. Frederick W. Uber made a formal application for membership, and the certificate was issued to him in due form October 3, 1891. This contains the ordinary provisions found in accident policies for payment of certain sums, varying in amount with the character of the accident, and so forth, and concludes with this stipulation: “Or if death shall result from such injuries alone, and within ninety days, the association will pay $5,000 to R. Maud Hodgkin, of Falls Church, Va., or in the event of her prior death or refusal to accept the same to C. E. Uber (his brother), or in event of their prior death, according to the by-laws.” The application for membership was made in the form required by the association, and is, by express stipulation, made a part of the certificate or policy. Following the name of the beneficiary, R. Maud Hodgkin, designated therein, is the following representation, “ whose relationship to me is that of a friend.”</p> <p>The certificate was issued subject to a number of conditions endorsed thereon, the only one of which that need be stated is the following: “All claims under this contract shall be subject to proof of insurable interest.”</p> <p>The object of the association, as stated in the first article of the by-laws, is, “ to collect and accumulate a fund to be held and used for the mutual benefit and protection of its members (or their beneficiaries), who shall have sustained, while members of the association, bodily injuries whether fatal or disabling, effected through external, violent and accidental means.” The by-laws require the board of directors to exercise general supervision of the business; to prescribe the form and manner of applications for, and the conditions of membership; to prescribe forms and measures for determining qualifications, eligibility, etc., of applicants; to decide on all claims, and to order assessments to pay losses, etc.</p> <p>Sec. 2 of Article VII of the by laws relating to “ indemnity, assessments and dues,” reads as follows: “ The board of directors shall prescribe the nature and amount of indemnity for the various kinds of injuries, whether fatal or disabling, and the terms and conditions upon which payment of indemnity shall be made. The terms and conditions of payment, other than as provided in these by laws, shall be specified in and made a part of each certificate of membership.” The second clause of this section further provides that in the event of the death of the beneficiary or beneficiaries, payment shall be made, first, to the wife and children, or the survivor of them, of the deceased member, and second, to his next of kin in the order as provided for the distribution of the personal property of deceased intestates by the laws of New York, “except where the member shall otherwise direct in his application for membership, or in and by his last will and testament.”</p> <p>All payments required under the certificate were paid by Frederick W. Uber, and nothing was ever paid by the beneficiary named in the certificate. It does not appear that the plaintiff knew anything of the transaction until after the death of Uber, who was accidentally drowned June 14,1892, when the certificate was delivered to her by one Timmins, a friend of Uber, with whom it had been left by Uber to be delivered to the plaintiff, R. Maud Hodgkin, in the event of his death. Miss Hodgkin did not decline the benefit of the policy, but furnished proofs of loss and made demand for payment, which was -refused.</p> <p>A jury was waived, and the cause submitted to the court, who gave judgment for the plaintiff, from which this appeal has been taken.</p> <p>1. There are authorities without number, including the Supreme Court of the United States, in the case of Insurance Co. v. Schaefer, 94 U. S. 460, which hold that a person has an insurable interest in his own life, and can make the policy payable to anyone, without reference to the beneficiary’s interest in his life. This, we admit as being true, but only for the one purpose, namely, of supporting the policy as against the company. If the policy be for the benefit of one who has no insurable interest in the life insured,it is as much a wager as if the policy were taken out by the beneficiary himself, and he can only take the proceeds of the policy to the extent of his interest, whatever that may be. Eq. Life Assurance Soc. v. Hazlewood, 75 Tex. 338, Bk. 7 L. R. A. 217.</p> <p>2. The policy sued on in this case was issued by the association subject to the condition that all claims under it should be subject to proof of insurable interest. This condition was annexed to the policy, and, not being unreasonable, is just as binding as any other condition contained in the policy. The existence and proof of insurable interest was a condition precedent to recovery under the certificate, and the appellee had no right to demand payment or to commence suit to enforce her alleged claim until she had complied with this condition. Miller v. Ins. Go., 2 E. D. Smith,. 268 ; Scott v. Roose, Long. & Towns. 54.</p> <p>3. When the association issued the certificate to Uber it was not required to determine whether the beneficiary might or might not have at some future time an insurable interest, in his life. That question could only be determined when the certificate became a claim. The condition expressly states that all claims shall be subject to proof of insurable interest. Independently of this, it is submitted that the association would have been justified in assuming that there existed between the parties some relation giving the beneficiary an insurable interest in Uber’s life. It would have been a fair inference from Uber’s application that there existed an engagement of marriage. Had such a relation existed the claim would have been promptly paid, on the theory that the beneficiary had such an interest in Uber’s. life as would entitle her to the proceeds of the certificate. Cooke on Life Insurance, 100; Chisholm v. Nat. Cap. Co., 52 Mo. 213. It is unnecessary to state the extent of the interest of the beneficiary in the body of the policy, and in the' absence of any condition in the policy to that effect the nature or extent of the interest need not be set out; but in case of loss, where no interest is described, the beneficiary will not be entitled to recover except on proof of interest. Am. & Eng. Ency. of Law, Yol. XI, 320, and cases cited.</p> <p>4. The condition requiring proof of insurable interest, manifestly applies to the interest of the beneficiary.</p> <p>Lamont v. Grand Lodge, 31 Fed. R. 177; Bloom. Asm. v. Blue, 120 111. 121,129; Chisholm v. Nat. Cap. Co., 52 Mo. 213; Mut. Ben. Assn. v. Hoyt, 46 Mich. 473; Delano v. Butler, 118 U. S. 634; Robertson v. Smith, 11 Tex. 211; Belt v. Mehem, 2 Gal. 159 ; Pollock on Contracts, 392, and note c; Lawson on Contracts, Secs. 206 — 8 ; Benj. on Sales, 306; Wiggins v. Knights, 31 Fed. B. 122; Manson v. Grand Lodge, 30 Minn. 509 — 12; Ins. Co. v. Schaeffer, 94 U. S. 460; Scott v. Dickson’s Admr., 108 Pa. St. 6; Olmsted v. Keyes, 85 N. Y. 593; Mc-Farlan v. Creath, 35 Mo. App. 112; Burkhardt v. Ins. Co., 102 Pa. St. 262; Bank v. Ins. Co., 95 U. S. 673; Berkeley v. Harper, 3 App. H. C. 308 ; Campbell v. Ins. Co., 98 Mass. 381, 389 ; Bacon’s Benefit Soc. and Life Ins., Sec. 249.</p>

<p>Hearing on a bill of exceptions by the defendants in an action of ejectment.</p> <p>The pacts sufficiently appear in the opinion.</p>

Hearing on a bill of exceptions by the defendants in an action of ejectment. The facts are sufficiently stated in the opinion. 1. Mere peculiarities and eccentricities of conduct, appearance, and character, however great, do not incapacitate a person from making a valid will. Lee v. Lee, 4 McCord (S. C.) L. 183 ; Leeper v. Taylor, 47 Ala. 224; McMasters v. Blair, 29 Pa. St. 354; Cauffman v. Long, 82 Pa. St. 77-80.

Hearing on a bill of exceptions by the caveators in a contest involving the validity of a will. The Court in its opinion stated the case as follows: This is a contest over the validity of a will upon issues sent from the Orphans’ Court.